Citation NR: 9606965
Decision Date: 03/19/96 Archive Date: 03/26/96
DOCKET NO. 93-07 828 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for
a seizure disorder, after December 3, 1987, and prior to May
18, 1991.
2. Entitlement to an evaluation in excess of 40 percent for
a seizure disorder, for the period from May 19, 1991, through
November 18, 1991.
3. Entitlement to an evaluation in excess of 20 percent for
a seizure disorder, on and subsequent to November 19, 1991,
to include restoration of a 40 percent rating.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her fiancee
ATTORNEY FOR THE BOARD
R. P. Harris, Counsel
INTRODUCTION
The appellant had active service from October 1981 to
December 1985. This matter originally came before the Board
of Veterans’ Appeals (Board) on appeal from a May 1991 rating
decision of the Detroit, Michigan, Regional Office (RO),
which confirmed a 20 percent evaluation for seizure disorder.
A personal hearing was held at the RO in January 1992,
following which the hearing officer rendered a decision in
July 1992 that, in part, granted an increased rating of 40
percent for the seizure disorder, effective May 19, 1991,
through November 18, 1991; and reduced the 40 percent rating
to 20 percent, effective November 19, 1991. The hearing
officer’s decision was implemented by a July 1992 rating
decision. That rating also assigned a 40 percent rating for
a period of time in 1987, ending December 3, 1987. Effective
December 4, 1987, a 20 percent rating was restored. For
purposes of clarification, the issues have been characterized
on the title page in terms of the appropriate periods. In
March 1995, the Board remanded the case to the RO for
evidentiary development.
REMAND
In the March 1995 remand, the Board pointed out that (1)
appellant had not been recently afforded a Department of
Veterans Affairs (VA) neurologic examination, (2) appellant
had testified at a hearing on appeal held in January 1992
that she received regular treatment for her seizure disorder
at the Allen Park, Michigan, VA Medical Center, (3) it did
not appear that the RO had attempted to obtain VA outpatient
records dated later than 1991, and (4) obtaining more recent,
relevant VA outpatient treatment reports, and conducting a
field examination or social and industrial survey to verify
any history of seizure activity from others who have
witnessed them, would shed light upon the type and frequency
of any current seizure activity.
Consequently, the Board in its March 1995 remand, directed
the RO to (1) obtain any recent, relevant treatment records,
including, but not limited to, those from the Allen Park VA
Medical Center, (2) conduct a field examination or social and
industrial survey, and (3) afford appellant a neurologic
examination. However, it does not appear that the RO has
substantially complied with the directives set forth in the
Board’s remand. The appellant’s representative has directed
attention to some of these deficiencies.
For instance, it does not appear that the RO attempted to
conduct a field examination or social and industrial survey,
for the purpose of interviewing persons who may have observed
appellant have any seizure activity. The appellant on the
recent examination did not report recent seizures, but she
has not been provided an opportunity to identify people who
may have seen seizures during the appeal period.
Additionally, it does not appear that the RO attempted to
obtain recent, relevant treatment records, including, but not
limited to, those from the Allen Park VA Medical Center. The
appellant was given an opportunity to report treatment that
had occurred, and she did not respond. That does not,
however, relieve the RO of the responsibility of obtaining
records of recent VA treatment which had been previously
reported. Moreover, while a VA neurologic examination was
conducted, it appears rather cursory.
Accordingly, the case is again REMANDED for the following:
1. The RO should contact the appellant
and request her to provide any relevant
clinical records (not already of record)
that she may have in her possession, as
well as the complete names and addresses
of any physicians and/or medical
facilities which have provided her
relevant treatment. All available
relevant clinical records (as
distinguished from physicians’ statements
based upon recollections of previous
treatment) should be obtained from these
physicians and/or medical facilities,
including, but not limited to: VA Medical
Center, Allen Park, Michigan. These
records from Allen Park must be requested
even if the appellant does not respond to
the other general request for information.
These records should be associated with
the claims folders. The appellant should
be requested to sign and submit
appropriate consent forms to release
private medical reports, if any, to the
VA.
2. The RO should contact the appellant
and request her to provide any relevant
employment personnel/medical records that
she may have in her possession, as well as
the complete name and address of her
current employer (See August 1995 VA
neurologic examination report, which
referred to her present employment). Any
relevant employment personnel/medical
records should be obtained, including
information with regards to the nature and
length of such employment; and any work
absenteeism and the reasons therefor.
These records should be associated with
the claims folders. The appellant should
be requested to sign and submit
appropriate consent forms to release any
such employment medical records to the VA.
3. A field examination or social and
industrial survey should be performed,
with interviews of the appellant’s
acquaintances, relatives, neighbors,
former and current co-workers, or other
persons who have observed her medical
state. The field examiner or social
worker should review the entire claims
folders prior to the field examination or
social and industrial survey, adequately
summarize the relevant history and
clinical findings, and describe in detail
the rationale for reaching their
conclusions. Particular emphasis should
be provided to detailed descriptions of
any seizures and frequency and duration
thereof (including dates of occurrence) as
described by the aforementioned
individuals. The description should
include reference to the following: the
presence or absence of aura; evidence of
tongue biting; anal and bladder sphincter
control; injuries associated with
seizures; and postictal phenomena. The
report(s) should discuss in detail the
impact, if any, her seizure disorder has
upon daily activities, including
employability. If it is determined that
such people can not be identified, that
should be noted for the claims folder as
should steps taken in making that
determination.
4. The RO should schedule appellant for a
neurologic examination to determine the
current nature, frequency, and severity of
her seizure disorder. All indicated tests
and studies should be performed. The
neurologist should review the entire
claims folders prior to the neurologic
examination, adequately summarize the
relevant history and clinical findings,
and describe in detail the rationale for
reaching his conclusions. A complete
history and description of any recent
seizure activity should be provided in
detail. If indicated, the examination
should be accomplished by means of a
period of hospitalization of the appellant
for observation and evaluation. The
examiner should determine and report the
type and frequency of attacks as
accurately as possible, since severity of
disability for rating purposes is
dependent upon type (grand or petit mal,
Jacksonian, focal motor or sensory, etc.),
frequency, duration, and sequelae of
seizures. The examination report should
include the number and average frequency
of attacks over a 1- to 2-year period and
whether they were wholly or principally
nocturnal or diurnal. The description
should include reference to the following:
the presence or absence of aura; evidence
of old or recent tongue biting; anal and
bladder sphincter control; injuries
associated with seizures; and postictal
phenomena. The examiner should state
whether there is any reason to doubt the
reliability or veracity of the appellant
and/or family (or surrogates) regarding
the history provided. The examiner should
discuss in detail the impact, if any, her
seizure disorder has upon daily
activities, including employability.
In order to avoid undue delay in this case, the RO should
make certain that the instructions contained in this REMAND
decision, detailing the requested development, have, in fact,
been substantially complied with. When this development has
been completed, and if the benefits sought are not granted,
the case should be returned to the Board for further
appellate consideration, after compliance with appropriate
appellate procedures, including issuance of a supplemental
statement of the case. No action by the appellant is
required until she receives further notice. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition warranted in this case, pending
completion of the requested development.
MICHAEL D. LYON
Member, Board of Veterans’ Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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